No-deal Brexit, free movement and right to work checks

Last week the Home Office published a new policy paper
on post-Brexit EU migration and new guidance on right to work checks. These set
aside the previous policy that was announced by the Home Office in late August.

A previous
Library Insight considered the impact on right to
work checks of the now scrapped plan. This Insight will consider the impacts of
the new plan.

As this is a fast-moving policy area this Insight should be read as correct at the time of writing.

Reminder: what are right to work checks?

As noted in the previous Insight, employers can face a fine if they employ a person whose immigration status does not permit them to work in the UK. They will not be fined if they carried out prescribed right to work checks. The checks can take the form of a manual document check or, in some cases, an online status check. The rules are explained in Home Office guidance.

It should be noted that carrying out right to work checks simply exempts the employer from a fine. If at any point a worker knows or has reasonable cause to believe that their immigration status prohibits them from working, the worker could be committing the criminal offence of illegal working.

What have the Home Office announced now?

The new Home Office policy paper says that EU citizens and their family members will continue to be able to enter, live and work in the UK without needing a visa until 31 December 2020. Essentially, free movement will continue through the operation of retained EU law.

EU citizens and their families who are living in the
UK before exit day will have until 31 December 2020 to apply for settled
status. Those arriving after exit day
will have until the same date to apply for European Temporary Leave to Remain (Euro
TLR), which will give them the right to live and work in the UK for three
years.

From 1 January 2021, those without pre-settled / settled status or Euro TLR will need to apply for a visa under the new immigration system to be able to stay in the UK legally.

What does this mean for right to work checks before 31 December 2020?

All EU citizens will continue to be able to show their
passports or national ID cards. Those with pre-settled / settled status or Euro
TLR can choose to use the online checking service, although employers cannot
require them to do so.

Non-EU family members will continue to be able to use their biometric residence cards (BRCs). Under current rules, those with BRCs can use either manual or online checks. Non-EU family with pre-settled or settled status can also use online checks on that basis. However, it is unclear whether those with Euro TLR will have a digital status or a physical BRC. Under the May Government’s plans, they would have received a biometric document.

What about right to work checks after 1 January 2021?

The policy paper states that from 1 January 2021 EU passports will no longer be sufficient proof of right to work. Instead, EU citizens will need to show either pre-settled / settled status, Euro TLR or a visa under the new immigration system. This will only apply to those starting a new job after 1 January 2021. The paper states that employers will not have to carry out “retrospective checks” on existing EU citizen employees.

An EU citizen with pre-settled / settled status or Euro TLR who starts a new job after 1 January 2021 will have to use the online checking service as they will only have a digital status. The3Million, an EU citizens’ rights group, have expressed concern that some employers would not accept “disproportionate” online checks and discriminate against these EU citizens.

The guidance is less clear for non-EU family members. Those with pre-settled / settled status will be able to use the online checking service, although it is unclear whether they will continue to be able to use their BRCs. Those with Euro TLR will be able to use this, although, as noted, it is unclear whether this will be in a digital or biometric format. Those who arrive after 1 January 2021 will be able to use their status under the new scheme.

What about the offence of illegal working?

As discussed, by 1 January 2021 EU citizens and their
families will need to obtain either pre-settled / settled status (if they were
here before exit day), Euro TLR or status under the future immigration system.
Under the current plans, if they fail to do so they will not have a legal basis
to continue living in the UK.

“It is
inevitable that the end of free movement, when it comes in 2021, will leave in
its wake a significant population of EU citizens who are illegally resident.
Some will have been resident for years, some will be relatively newly arrived.
All will be subject to the hostile environment.”

The fact that employers are not required to carry out “retrospective
checks” would suggest that they will not be liable for a fine
even if their EU citizen employees lose their legal status. However, if an EU
worker has reasonable cause to believe that they have lost their legal status,
they could be prosecuted for the offence of illegal working.

It should be noted, however, that as of June 2018 there had not been any convictions for that offence.